People v. Calbud, Inc.

Appeal by the People from nine orders of the Supreme Court, Queens County, each dated March 7, 1978, which dismissed indictments charging the defendants with obscenity in the second degree. Orders affirmed. The defendants were indicted for the crime of obscenity in the second degree in that they "promoted and possessed with intent to promote obscene * * * motion picturejs]”. In instructing the Grand Jury, pursuant to CPL 190.25 (subd 6), the Assistant District Attorney referred, inter alia, to the term "obscenity” as: "Any material or performance is obscene if the average person applying contemporary community standards would find that considered as a whole, its predominant appeal is to the prurient interest in sex, * * * Predominant appeal shall be judged with reference to ordinary adults unless it appears from the character of the material or the circumstances of its dissemination to be designed for children or other specially susceptible audience.” (Emphasis supplied.) In our opinion, the Assistant District Attorney’s instructions were inadequate in that he failed to advise the Grand Jurors that in determining whether any of the material before them is patently offensive or obscene, the "contemporary community standard” to be applied is a "state standard” (see People v Heller, 33 NY2d 314; People v Nitke, 45 AD2d 543; cf. People v Ciampa, 57 AD2d 932, 935-936). By employing the term "community standard” without also stating that the term was Statewide in scope, the Assistant District Attorney afforded the Grand Jurors individually and collectively an opportunity to consider the term in light of standards held in a relatively circumscribed area. Without doubt the defen 899 dants were entitled to the utmost protection, made available by the determination of the United States Supreme Court in Miller v California (413 US 15), and the Court of Appeals of this State in People v Heller (supra). These decisions place upon the individual juror the duty to disregard the level of tolerance in his community toward pornography, and instead to make an objective determination as to what constitutes the State-wide standard. The contention of the dissenter that an instruction to a Grand Jury prescribing a "community” rather than a "State-wide” standard could not, under, inter alia, People v Heller (supra) invalidate an indictment otherwise based on legally sufficient evidence is belied by Judge Gabrielli’s strong admonition in Heller, on behalf of the whole court (p 322): "We take pains to here declare that in determining whether any material is patently offensive or obscene, the community standard to be applied is a 'state standard’.” (Emphasis supplied.) Therefore, since the Assistant District Attorney did not instruct the jury that a "state” community standard must be considered when determining whether material is obscene, Criminal Term properly dismissed the indictments (see CPL 210.35, subd 5). The requirement that petit jury instructions contain an adequate statement of the law to guide the jury’s determinations, applies with equal force to Grand Jury instructions (People v Mackey, 82 Mise 2d 766, 770). Where the failure to properly instruct the Grand Jury results in prejudice to a defendant, a dismissal of the indictment is required (People v Cunningham, 88 Mise 2d 1065, 1082; People v Ferrara, 82 Mise 2d 270). Titone, Rabin and Hawkins, JJ., concur.